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How to File a Petition to Stop a Foreclosure

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                48 South Main Street, Concord, New Hampshire 03301-4823
           603-224-3333   FAX 603-224-6067     800-639-5290  www.larcnh.org




           How to File a Petition to Stop a Foreclosure
       We spoke to you recently about your foreclosure problem. At that time, we gave
you advice about your case and how best to proceed. As we discussed with you, we
are enclosing a sample/form petition that you can use to ask the Superior Court to stop
or delay the foreclosure sale of your home. Our advice is based on the facts as you
described them to us. This letter provides you with instructions on how to file the
petition and make your arguments to the court.
       To succeed with this petition, it is crucial that you have a solution to present to
the court. While the law gives you the right to simply ask for more time, the court is
very unlikely to grant your request unless you can say that a delay will give you time to
pay off the debt without putting the mortgage holder further behind. This generally
means that you need the time to refinance the mortgage with another lender, you have
other money coming in to pay off the debt, or you have a buyer and need time to
complete the sale.


Filling out the form The petition we sent you is partly completed, with space left for
you to fill in the facts of your situation.

     At the top, you will need to fill in the names of the parties – you are the plaintiff
      and the mortgage holder (bank) is the defendant.
    You will need to fill in dates and amounts of money.
    Paragraphs 6 and 7 are blank, for you to tell the story of what happened – use
      your own words.
              Describe how you first got into trouble with your mortgage;
              Describe when this problem started;
              Describe what you have done to try to solve the problem;
              Describe how the debt can be paid or the arrears caught up:
                     You have a buyer for the home, but need more time; or
                     You have a way of refinancing the home, but need more time; or
                     You have some other way of paying off the mortgage soon;
              Use as much space as you need – feel free to make these 2 paragraphs
   longer, or even add additional paragraphs if necessary to tell what happened, what
   you tried to do to prevent foreclosure, and what your plan is to solve the problem.

      Make copies – the original for the court, 1 for the mortgage holder, 1 for their
       attorney, and 1 for yourself.
Filing the Petition

       The petition should be filed as early as possible.
       Give the petition to the clerk of court as soon as you arrive. Because you are
        asking for immediate relief, you want to appear before a judge or get an order
        as soon as possible.
       Ask the clerk what you should do next. You may be given a specific time to
        come back, or you may have to wait. Follow the clerk’s instructions and be
        prepared to wait as long as it takes.
       This petition asks the court to delay the foreclosure, and it asks the court to
        issue an immediate order, without hearing from the other side (that is what ex
        parte means).
       If the court grants the ex parte part of your request, the foreclosure may be
        briefly delayed, but only until a hearing can be scheduled where both sides can
        be heard. That next hearing is likely to quite soon – that is when you can
        explain to the court why the foreclosure should be delayed for a longer period.




Talking to the other side

       You must notify the other side that you are filing the petition. You also should
        try to get them to agree. Even though you are presumably filing this petition
        because you have already tried to get the bank’s agreement, you need to ask
        them or their attorney anyway.
       When you know the day and time when you plan to file your petition, tell the
        other side. If the clerk gives you a time for a hearing on your ex parte request,
        you should let the other side know when the hearing will be. Even though this is
        not formal notice, the court will look at your petition more favorably if you gave
        the other side the chance to be present, even if they cannot be there or choose
        not to be.
       Once you have actually filed the petition, you still may be able to discuss a
        settlement with the bank or its attorney. You should definitely take this
        opportunity if it is offered. If an agreement will get you the time you need, that
        is better than taking your chances in court.
At the hearing

      Remember that you are asking the court for a delay only. You are not
       challenging the foreclosure or the bank’s right to foreclose.
      The best argument for getting a delay is to convince the court that more time
       will allow you to pay off the bank (or at least bring payments up to date), while
       not harming the bank financially.
      Point out that you have a realistic means of solving the problem – refinancing,
       sale, another source of payment – and that the mortgage holder will still get its
       money.
      Emphasize that the mortgage holder will not be harmed by the delay.
      Describe your efforts to come up with the necessary money; make sure the court
       knows that you have not been ignoring the problem.
      Point out that once the home is sold, your loss will be irreparable – you will not
       be able to get it back or be compensated in money for losing your home.
      If you can, ask for a specific amount of time – depending on the circumstances,
       30–60 days is not unusual.
      The ex parte part of your request will only be temporary. If the order is granted,
       the court will schedule a swift hearing, often within 7-10 days; this gives the
       court time to notify the other side and the other side time to prepare.
      We have supplied you with a proposed order, which you can give to the judge.
       If the judge agrees with you, it makes it easier if you supply an order that says
       what you want it to say. Or, the court may choose to issue its own order, in its
       own form.
      Try to have an outline of what you plan to say – it’s better not to read from a
       script, but having some notes will help you to make sure that you do not leave
       out the things you need to say.



*************************************************************

      The petition has LARC’s name at the bottom. If the judge or anyone else asks
you about it, feel free to tell them that LARC gave it to you, as part of the legal advice
we have already provided.

       Call LARC If you have any questions about this petition or the procedures
involved with filing and service, you can call us back. We would like to know the
outcome of your case, and would appreciate hearing from you. The toll-free number to
LARC is 1-800-639-5290; you can get into the housing line to speak to one of our staff.

       Good luck!


                                                        Sincerely,

                                                        Legal Advice and Referral Center

				
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